The Art of Written Communications with the Court

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Why you want to hire Browne and Associates Legal Services Prof Corp to draft your claim/defence/motion!

Pleadings are often mentioned in legal proceedings, mostly giving rise to a perplexed look from the individuals involved in pursuing the legal action. What is a “pleading” and why does it matter? Do you want one, and what type of pleading works best? What do you want to say to the Court and how do you say it?

Drafting pleadings is high art. The drafter must combine the facts, the law and the language in a manner that subtly directs the reader to a desired conclusion or conclusions without relying on argument, caselaw or descriptive language.

A simple explanation – a “pleading” is legal document relating to a step in a legal proceeding. More practically, it is what you write down and submit to a court as part of what is happening. Some examples, if you have hired a contractor and you are unhappy with the work, you may sue the contractor to get your money back. That legal claim with the Court would be considered a pleading. When the contractor disputes your claim, he serves you with a defence, and files the defence with the Court. This defence is also a pleading. Other documents may be considered pleadings if, essentially, they tell a story to the Court.

Pleadings are not evidence. Pleadings are statements of fact, without argument. As a practical matter, pleadings tell the story of your claim or defence to the Court and to the other side. This is like a report, containing factual statements on what happened. Pleadings should not contain argument or unsupported allegations. Bill from Alien Contracting may be a sasquatch, but unless you can definitively prove he is in fact a sasquatch ( and no, that he is hairy and elusive and has big feet is not sufficient proof for the Court) you should not mention this in your pleadings. The fact that you believe he left a hole in roof which he failed to shingle, even though you hired him to fix the hole and reshingle the roof, that fact should be in your pleading.

Pleadings must satisfy the 5 w’s of reporting, who, what when where and why. The reader must know what you are claiming, why, how much and from whom. If you don’t answer those questions, the other side will be unable to properly respond and the Court will not understand your case, delaying the matter and increasing your costs and frustration level.

Pleadings tell your story. A good story means you state your case clearly, elicit sympathy and support and make reasonable requests. A trier of fact, (think the “Judge” although it can be a deputy judge or an adjudicator or justice of the peace or a judge judge) loves a simply put, factually consistent case.

Now what kind of pleading do you need?

“Harvard Law School professor Alan Dershowitz shares with his students a strategy …. If the facts are on your side, Dershowitz says, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table.”

The above quote deals with presentation of a case at Court, with a little humour. Pleadings are the first step in presenting the case and you need to tailor them accordingly.

We all have something to prove!!

Knowing what legal principle(s) is/are involved is critical, because it directs the pleadings. To prove an allegation of fraud, for example, certain allegations need to be pled. For defamation or conversion or negligence, each claim has specific legal tests to be met and the pleadings must disclose that information to support the allegations.

The facts and nothing but the facts, so help me !!!

Also critical is removing information that is not relevant to proving the allegations. You do not want to distract the reader from the essence of the story and have them mentally wandering down the garden path to different conclusions. ONLY THE ESSENTIAL ALLEGATIONS SHOULD BE IN THE PLEADINGS.

Taking action!!

Circumstances sometimes dictate an immediate response, what I term a stick pleading, as in stick it in NOW! You may need to preserve a timeline to avoid having a limitations period expire or to avoid being noted in default.

For an example, you have been served with a statement of claim, personally. You note it has 20 days to respond, you phone around and book an appointment with your representative on day 15, a Friday. Well, the defence has to be served and filed within the 20 days, you lose two days to a weekend and …. Time is very short. And of course, the defence has to be drafted, before it can be sent out for service and filing. So you may choose to create a very basic defence, essentially a denial of the allegations, and get it out immediately to avoid being noted in default. A “stick” pleading may be necessary. There are other potential situations for “stick” pleadings, a preservation of a limitation period ( so time to proceed does not expire) or a situation where settlement negotiations are ongoing and likely to be fruitful, but a defence still needs to be filed to preserve your position. Perhaps you have a minimal fact situation, a “bounced” cheque…. To keep costs low and to expedite the process, your claim would be a stick claim, stating that so and so presented a cheque as payment for whatever on this date. Said cheque was not honoured by their financial institution and you seek payment for same. Most pleadings will not be “stick” pleadings but they have their uses.

Drafted pleadings…. Allegations will be set out in numbered paragraphs, containing all the pertinent details and nothing inappropriate. The story will be told in plain language, it is easy to follow and contains the necessary dates and times to support the narrative. It will allow the reader to understand the complete sequence of events, and it will also lay out what the party is seeking and why. The why will allow the reader, in particular the Court, to identify what legal tenet(s) the party is relying on, either by stating that particular tenet clearly or by having the legal tenet set out clearly.

Beginning with the End in Mind….or when the Gold Standard is applicable – an advanced version are crafted pleadings, Crafted pleadings are essential for more complex matters, where you require the reader to follow a certain thought process, be it legal or factual. If you have a complex legal argument, if you have a complex or convoluted case, if you have to rely on a rarely used exception to establlished law or practice, you need to craft your pleadings carefully. While drafted pleadings contain the essentials to establish the pertinent legal issues, crafted pleadings subtly establish a path to lead the trier of fact to consideration of particular issues. In these circumstances, the legal research will be done up front and the language of the cases to be relied upon at the conclusion of trial will be woven into the pleadings. Subtle, repetitive use of the language in the judgments from your legal research serves to reinforce the legal proceeding, to direct the trier of facts thoughts to those cases and to assist in recognition of the legal principles when argued on closing.

You then carefully elicit the evidence at trial to support that language and that case law to your desired conclusion.

The art is to have the pleadings drafted in such a manner as to be completely invisible to the reader in its application. Regardless of the correctness of any legal position, human nature being what it is, telling someone they must make a certain decision rarely goes well. The pleadings must lead to a “discovery” of sorts of the legal principles invoked and applied to the fact scenario before the Court. Leading the trier of fact to consider your facts as immutable and your interpretation of the law as her/his own interpretation of the law is the highest form of the Art of Pleadings.

PRACTICAL CONSIDERATIONS

Costs ….. What do you have to spend? You may have a legitimate claim for $25,000.00 or $150,000.00. However, if your choice is between feeding the kids or paying your legal representative, you need to work out something that acknowledges the need to feed the kids. Don’t believe me? If you don’t feed the kids, you will need legal representation very very quickly and not just to pursue your initial claim.

Can you get paid? The number one consideration in commencing any legal action is to understand that the legal action is only a means to an end. You want property returned, you need your car fixed, you want the money you paid back so you can fix your roof properly. How that occurs is really immaterial to you. The legal avenue you take has to lead to the result you desire. If you can’t get what you want/need at the end of the day, you are in the wrong process.

Pleadings can make or break a case. They also set up the entire claim or defence for the Court and they focus the legal issues and the evidence needed to be successful. Maybe, with guidance, you can run the trial successfully. But without solid pleadings, you have no traction to get you to where you need to be.

Browne and Associates Legal Services Professional Corporation can assist. We can represent you through to trial, we can simply draft your pleadings, we can help you focus your legal arguments to get you to your end result. We can provide as much, or as little, assistance as you require and we do so thinking about your desired result foremost. We exist because clients refer new clients to us, we need you to be successful so we can continue to be successful. Please call and book your consultation to see what Browne can do for…… I mean, to see how we can assist you.

Bruce Parsons

Welcome Home to Browne & Associates Legal Services Professional Corporation

Welcome to the website of Browne & Associates. My name is Angela Browne, who has invited distinguished colleague Bruce Parsons (formerly of TCS Paralegal) to work together with me to build Browne & Associates Legal Services Professional Corporation.  This year, we added Dina Tull who had practiced in the Greater Toronto Area before she joined us. She has experience and industry knowledge in health and safety, human resources and business administration. Our collective experience and knowledge of the legal system will provide the regions we serve with a greater variety of cases, and dispute resolution processes to get the best solutions for you.  As our firm grows and adds more associates, additional services will be offered.

Our areas of practice include:  debt recovery, contract law, construction and renovation issues, employment matters, RSLA/PPSA actions (stored items, leased items), landlord and tenant board issues (for both landlords and tenants), education and school issues, disability claims (such as ODSP, CPP, WSIB and EI), OSPCA issues, provincial offences, driving and traffic offences, human rights and general litigation disputes before the small claims court (for both those filing the claim and those defending them).  Together, our firm will bring to their communities over fifty (50) years of collective experience working in the legal field in public, corporate and private sectors.  We will continue to Take on the Matters That Matter to You!  Please give us a call at (905) 688-5598, to see if we can help.

When you need help… thoughts on finding the right legal assistance

One thing we all struggle with when facing potential legal issues is defining that moment when we need professional assistance. When we seek assistance beyond ourselves, when we need another human being, we are vulnerable. So, frequently, we turn to those we trust most. Our family. Our friends. Our coworkers. People we already have share trust with. Emotionally, this is a safe decision. Intellectually, we know it is probably not the correct decision.

As technology advances and we become more and more specialized in what we do, it becomes maybe a little easier for each of us to understand the value of knowledge. Once Lawyers, Doctors and Judges were held in awe. Now we know that they merely hold knowledge the rest of us do not, and that knowledge has value. It allows the mechanic to fix our car, the hairdresser to cut our hair and the more important the issue is in our lives, the more important it becomes to obtain that knowledge.

Thankfully, we live in the age of information. At our fingertips, frequently in our pockets, we have computers capable of summoning vast stores of knowledge. And we can take our potential legal issue and look up what we believe are the relevant laws and find them, without issue. In a google search or two, we can receive all kind of advice on how to proceed. Some of it may sound helpful, some not at all. Some may be correct. And that is where we begin our journey, many of us, to wisdom. How do we know what’s right and what isn’t? Who would know? And that elephant in the room, what is this going to cost, can we afford it? Can we not afford it?

GOOD NEWS! finding out is NOT going to cost us anything. Depending on our issue, and our knowledge, we may already know the type of legal professional we need. If we have a matter with a tribunal, with Small Claims Court ($25,000.00 or under, not so small, I know!) with a Tenant or Landlord, with a Traffic Ticket or with your license, it is a paralegal that likely fits the bill for a free consultation. If it is a family law matter, a real estate matter or a will, we need a lawyer. Maybe we aren’t sure. So we can contact the Law Society of Upper Canada, where they run a free referral service that will assist. (https://www.lsuc.on.ca/lsrs/) First, they will figure out who we need, is it a lawyer or a paralegal? Then they will set us up with a recommendation for local service provider to give us a free twenty minute consultation. And, knowing who we need, paralegal or lawyer, we can phone around and arrange our own consultations as well. We can now find someone whom we feel comfortable with.

Elsewhere on this website there is an article about what to do to prepare for your consult, it is older but valid, regardless of your legal issue. The more prepared you are, the better the advice you can receive. You may need representation. You may only need some assistance. You may be fine acting on your own. It is important that you know, with certainty, what your legal rights and options are. You should NEVER feel pressured to sign up during an initial interview with a legal service provider, paralegal or lawyer. You should receive clear information on your rights and options. You should feel comfortable with your choice of legal representation, always.

Professionally, I operate in three advocacy areas. Small Claims, Landlord/Tenant, and Provincial Offences, primarily Highway Traffic Act matters, which folk generally think of as traffic tickets. I don’t cover all practice areas paralegals do, and I do not accept all clients within my chosen sphere, the fit has to be both ways. As I have practiced and grown in the profession, I find that a certain amount of emotional investment in my client’s situation works best for me. That’s a personal thing, it doesn’t show in correspondence or in court, but it helps me feel that I have accomplished something I believed in at the end of any given day. So I take those files I am comfortable with and pass on those I do not to my colleagues. Many of my colleagues feel professional detachment is important and this is a valid and, I believe, important position for legal professionals.

I do refer potential clients out to other paralegals and lawyers I know personally. I don’t take referral fees from those files, that, again is a personal thing. If I refer you, I think of you as my client and I am sending you to where I believe you will receive great service. Where I don’t have a personal referral, I direct clients to the Law Society referral service.

When should you choose to seek legal assistance? Early. As soon as you identify a potential problem. You can get a free consultation, most legal professionals will offer one. It is available through the Law Society Referral Service. Use it. Give yourself the peace of mind that comes with knowledge. It is a gift beyond measure, and, truly, this is the age of information.

Insurance to be Checked in Real Time

In the past, the Ministry of Transportation has relied on proof of insurance, some stubs and information and they assumed you had valid insurance. Still, the number of suspected drivers without insurance has been on the rise and in an initiative with the Insurance Bureau of Canada the Ministry of Transportation is bringing the process of checking automobile insurance into the modern era.

The Uninsured Vehicles Project (UVP) began on November 29th , 2010 and now allows the Ministry to check your insurance electronically using the Vehicle Insurance Number (VIN) to make sure that the vehicle is registered with mandatory automobile insurance. Those drivers who are unable to show valid auto insurance will not be allowed to renew plates.

Perhaps just as importantly, the UVP is allowing the government to send notices to those drivers who have issues preemptively. Now, 120 days before your license renewal, the Ministry will send out what they are calling a 120 day letter which informs you that you have either insurance or VIN issues showing on their system. If you have no issues, you are not sent this letter although not receiving the letter is not a guarantee that everything is valid on the day you renew your plates. Individuals are still responsible for ensuring they are in compliance with Ministry requirements.

To renew your plates, all of the same information is still required – including proof of insurance.

The Ministry Announcement can be found here: http://news.ontario.ca/mto/en/2010/11/no-insurance-no-plate-renewal-1.html

P.S. – a conviction for No Insurance carries a minimum fine of $5,000.00 (plus substantial surcharges, equalling to 25% of the fine +$5.00 for court charges (6255 minimum) ) for a first offence and can carry a license suspension. We strongly recommend any individual charged with operate motor vehicle – no insurance or, permit drive motor vehicle – no insurance obtain legal advice at their earliest opportunity.

Editor’s Note: This article was first posted in 2010, shortly after this program began. It is reposted here, on our new site for your information.

Tougher Sanctions for Suspended Drivers


Editor’s Note: This article was originally posted in 2010 regarding changes to the law regarding Drive Suspend. Since knowledge of all these things are still relevant and not known necessarily that well publicly, we’re re-posting it here from the old site.

As of December 1st 2010, the Ontario Government and the Ministry of Transportation have implemented another part of the Road Safety Act, 2009. This part of the Road Safety Act, has to do with the impounding of vehicles which are being driven by suspended drivers.

In short this portion of the Act gives the officer the authority to impound the vehicle on the spot if the driver is:
 Driving over the legal limit (.08) or failing and/or refusing to provide a breath sample
 Unpaid Family Support- Highway Traffic Act Suspension
 Driving without an Ignition Interlock Device when one is required
 Or if your license is suspended for Highway Traffic Offenses such as:
 Demerit Point suspensions
 Careless Driving, Stunt Driving, Driving while suspended,

A notable exception is that defaulted fines resulting in suspension will not lead to the impounding of a vehicle.

The impounding lasts for 7 days and is not appealable, This is part of the government’s policy that you are responsible for knowing the status of who is driving the car along with promoting their phone and internet ways to check the status of a driver’s license. The exception to this is that if a Police Officer may direct the release of the impounded motor vehicle before the 7 days are up if they believe the car was stolen at the time of it being driven.

In all cases, the owner of the car is responsible for paying the fees related the towing and storing of the car before it is released to them. The owner may attempt to recover the costs from the Driver via a court action if the Driver is not willing to pay for this. Exact methods of how impounding are handled for these vary on location as they are the responsibility of the police and not the Ministry of Transportation for 7 day suspensions (including Stunt Driving suspensions).

Large Commercial Vehicles (Those weighing over 3000 kilograms) are offered an alternative program. This alternative says that as long as the driver has not been suspended for 100 or more days, the vehicle will not be impounded, for Highway Traffic Act suspensions. This does not apply for suspensions of over 100 days, having a blood alcohol level of over .08 or lacking an ignition interlock device when one is required. In any circumstance the driver still faces all penalties for Driving Under Suspension and any other applicable charges and is not allowed to continue the trip.

The reasoning given for this is that 100 days is enough for business’ to conduct quarterly license reviews, the higher costs of towing a larger vehicle (estimated at 1200 to 1500 by the ministry), the number of passengers a bus may have, the issue with having trailers stranded and needing a new driver and vehicle to continue the trip. For those who do not meet the alternative programs restrictions, the vehicle will be impounded.

The Ministry of Transportation announcement can be read at http://news.ontario.ca/mto/en/2010/12/end-of-the-road-for-suspended-and-impaired-drivers.html.

P.S. A conviction for Driving Under Suspension carries a minimum fine of $1000 (in addition to substantial surcharges) for a first offence, and up to 6 months in jail. TCS strongly recommends any individual charged with Driving while driver’s licence suspended, seek legal advice at the earliest opportunity and not drive any more!

P.P.S. To find out if a person is suspended or not the MTO provides some tools:
– First you can call 1-900-565-6555 with the driver’s license and check. A charge of $2.50 will be added to your phone bill.
– Second you can check online at the MTO Website at $2.00 payable by credit card
– Last you can order a driver’s abstract either online or at a service ontario centre, though that option is normally only available for yourself. Read more about Drive Abstracts on the MTO Site here.

Fire Hydrants, Parking Tickets and You

CBC recently ran a story on fire hydrants and the parking tickets from them that are given out in Toronto. At $100 a ticket since 2008, Toronto has collected $24 million from people parking within 3 meters of a fire hydrant.

In particular one fire hydrant in Toronto has done its duty to help collect money for the city by providing more than $289 000 in fines since 2008. Situated near the downtown courthouse in Toronto, at a major intersection at 383 University Avenue, it’s been significantly more prolific in parking tickets for vehicles in front of it than any other place.

Parking tickets like this and other ones are given out under Part 2 of the Provincial Offenses Act. Part 2 tickets like this are essentially just a fine – you can protest them like others but there is less reason. Why, you may inquire? Because the main reasons to protest a ticket are insurance, driving record and demerit points – none of which apply to Part 2 offenses. Perhaps due to the fact they cannot confirm who was driving at the time, the penalty for these ones are limited to the fine that appears.

That said there is sometimes reason to file a Part 2 offense such as a Parking Ticket or even a Red Light Camera Ticket (which is a part 1 offense, though sharing many similarities in penalty). In many cases, the crown will offer a lesser amount on the fine to solve the matter and move onto other matters. Thus filing the ticket yourself if you have the time and desire can make some sense.

However it doesn’t particularly make sense to pay representation to contest a parking ticket in most cases as the reasons you would contest do not apply. There are some exceptions to even this though – in Hamilton we offer our Red Light Camera service for free where we will file your ticket and get you the reduced fine at no cost. In Toronto several agents fight parking tickets commonly and presumably at a cost efficient rate.

Other than our Red Light Camera program (which while not a parking ticket, has a similar consequence) we don’t fight parking tickets because it isn’t a good use of your time, or money. Paying us to fight a ticket would cost you money and all we could do is get some of the fine knocked down – or even get it gone but for something like $100 or $300, it is not worthwhile to pay us several hundred to go through fighting it given it has no effect on your insurance or driving record.

One last note regarding all of these tickets – they have to be paid when you renew your plates and/or val tags. If they are not paid, you have to pay them then or they will not allow you to renew them!

It can’t hurt to park safe – and especially away from fire hydrants!

Don Parsons
TCS Legal Services

The Magic G

Editor’s Note: This article was written a couple years ago to discuss the value of a G license as many people don’t realize the value it has compared to a G2. This still holds true today, and it required minimal updating for reposting. I hope you enjoy!

One of the most underrated things as far as driving goes in Ontario is that of a G license. Many people get their G1 or G2 and are happy driving on those not knowing the costs they cause themselves inadvertently. What can G do for you? Let’s see…

Lower Insurance Cost

Your insurance cost doesn’t start lowering in any real amount until you’ve got your G license. The G license tells the insurance company that you’ve complete road tests and are judged fully capable on the road so they start counting your safety rating from that time.
Higher Demerit Point Cap

No one wants to get demerit points and for the most part people aren’t given many tickets. Regardless though at some point everyone can bend a rule in an officer’s opinion or speeding or have your tires still moving at a stop sign… any of them get you some points.

On a G2 license you have a cap of 9 points, a letter from the ministry with any points and a meeting with the ministry at 6 points where you can be suspended. Compared to a G license – where you get a letter at 6, a meeting at 9 and a cap of 15 when you’re off the road.

Not only that, but with a G2 license, any ticket with 4 or more demerit points gets you an automatic suspension! No questions asked; it’s a 30 day suspension that arrives in the mail after you pay the ticket, compliments of the MTO. Any G2 driver should always consult TCS before paying a ticket.

Lifting of G2 License Restrictions

The G2 License has numerous restrictions on it to help make Ontario’s roads safer and to let drivers learn with lesser risk scenarios (or so goes the theory). Upon getting your G you are no longer required to follow these. The restrictions are:

  • Absolutely no alcohol in system – regardless of age
  • If you are 19 years old or younger, you no longer have restricted passengers between midnight and 5 a.m.

All of these are reasons to get your G license as quickly as you can – and we encourage you to help yourself, GET YOUR G.

Bruce Parsons
Paralegal
TCS Legal Services